MPs’ expenses: copies of receipts are subject to FOIA

Following the MPs’ expenses scandal, the then newly-founded Independent Parliamentary Standards Authority (IPSA) decided that it would not routinely publish images of the receipts submitted to IPSA by MPs in support of their expenses claims.  Rather, only text transcribed from the submitted receipts was to be published.

The question that arose in IPSA v Information Commissioner (EA/2012/0242) was whether images of those receipts held by IPSA contained “information” within the meaning of section 1 of FOIA, which was not captured by the transcription process favoured by IPSA. In a decision handed down today, the First-Tier Tribunal held that those images do contain such information, and so dismissed IPSA’s appeal. The receipts in question related to claims made by John Bercow MP, Alan Keen MP and George Osborne MP in 2010, which were requested by Mr Brian Leapman of the Daily Telegraph (whose FOIA requests, together with those of others, had played a vital role in the exposure of the old system of MPs’ expenses). The decision is an unusual and interesting instance of the question of “what is information?” arising for consideration in the FOIA context.

Information is defined by section 84 of FOIA (“‘information’ (subject to sections 51(8) and 75(2)) means information recorded in any form”).  The tribunal concluded that, in this case, this definition included logos, letterheads, “handwriting/manuscript comments”, and “the layout and style/design of the requested documents” – each of which were not disclosed to Mr Leapman as a result of providing a transcription, rather than a copy, of the relevant receipts.  The tribunal rejected IPSA’s submission that those materials were “merely presentational”, and went on to consider further examples of information falling within section 1 of FOIA that could be of forensic value to a person investigating expenses claims by MPs:

“…a signature on an invoice may indicate fraud if it was identical to the claimant’s signature or that of a member of his team; a shoddily presented invoice may call into question the legitimacy of the company said to have issued it, or a letterhead or logo may have changed or be different to the one usually associated with a particular company – again bringing the legitimacy of the invoice into question.

The tribunal noted that IPSA insists on seeing actual receipts for its own purposes, and that the Chief Executive of IPSA had accepted in evidence that “sight of the receipt might be more informative”.

In arriving to the conclusions above, the tribunal rejected an attempt by IPSA to rely on section 11 of FOIA to justify the method by which it chose to disclose information to Mr Leapman. Section 11(4), permits a public authority to use a means of communicating requested information that is “reasonable in the circumstances”; and section 11(1) requires a public authority to give effect to a preference for a particular form of communication to the extent that it is “reasonably practicable”.  IPSA argued that for practical reasons it was not reasonable or reasonably practicable for it to fulfill Mr Leapman’s alleged preference for disclosure by a particular means of communication (see paragraph 14).

The tribunal found, however, that section 11 cannot operate to enable a public authority to limit the information which it is obliged to disclose.  Rather, the principle question for the tribunal was whether the disclosure by IPSA to Mr Leapman in fact conveyed all of the non-exempt information contained within the receipts.  As the answer to that question was “no”, it was not necessary for the tribunal to go on to consider the applicability of section 11.

Robin Hopkins appeared for the Information Commissioner; Philip Coppel QC appeared for IPSA.

Tom Ogg

11KBW Information Law Conference, 18th April 2013

11KBW is a leading set of barristers in Information Law with a wide range of expertise across all aspects of this complex and rapidly evolving area.

Timothy Pitt-Payne QC

The Royal College of Surgeons of England, 35-43 Lincoln Inn Fields, London WC2A 3PE

Topics include
The Crown Jewels? – Safe space, policy and the veto
FOI use and abuse – Costs, vexatious and repeated requests, and search obligations
Recent cases in FOIA/EIR
Going to penalties – MPNs, handling and reporting data breaches
Privacy, safeguarding and surveillance – (including T v Greater Manchester, and Southampton v ICO)
Social media and the law

We are delighted to have Richard Thomas CBE, the former Information Commissioner for the UK, giving a keynote address at the conference.

An expert panel will be discussing ” The future of data protection”.

Full Programme click here.

The conference will be credited 4.5 hours CPD – SRA/BSB

£99 + VAT (20%) = £118.80 to attend half day plus lunch
£150 + VAT (20%) = £180.00 to attend full day

How to Book
To book your place on this conference please email with the delegate name, firm, email address and any purchase order details you may require. You will be then sent a confirmation email of your place and invoiced. We do not have the facilities to accept payments by credit or debit cards.

Application of the DPA to surveillance activities

By Julian Milford

The First-Tier Tribunal (“FTT”) has just issued the first ever tribunal decision concerning the application of the Data Protection Act 1998 (“DPA”) to surveillance activities: Southampton City Council v The Information Commissioner EA/2012/0171, 19 February 2013. In this case, the Council’s licensing committee had resolved in 2009 that all taxis it licensed should be fitted with digital cameras, which made a continuous audio-visual recording of passengers.  The Information Commissioner (“ICO”) issued an enforcement notice against the Council under the DPA, requiring the Council to stop audio recording, because it was in breach of the Data Protection Principles in the Act (the first Data Protection Principle in particular).

The Council appealed to the FTT. It accepted that words recorded by the equipment were “personal data” for the purposes of the DPA, and the very act of recording was a form of “processing” by the Council under the Act. What the Council disputed was (1) the conclusion that the policy involved the processing of “sensitive personal data” as well as personal data; and (2) the ICO’s finding that the recording and retention of audio data was a disproportionate interference with passengers’ privacy rights under Article 8 of the European Convention.

On both points, the FTT found in favour of the ICO. The FTT said that it was “unrealistic” to contend that the policy did not involve the processing of “sensitive personal data”: taxi users would undoubtedly from time to time discuss their own and others’ sex lives, health, politics and so on. The FTT also agreed with the ICO that although the processing served the legitimate aims of promoting public safety, preventing crime, and protecting persons, it was not proportionate. The FTT observed that there were two important points to note. First, the legitimate aim could only be directed at “taxi-related” crime: the fact that police had been able to obtain useful evidence about other crimes could not therefore come into the balance as a benefit. Secondly, the relevant benefits and disbenefits were only the marginal ones coming from audio recording, because no complaint was made about CCTV in taxis. Against that background, the policy’s significant interference with privacy rights outweighed any resulting benefits. The FTT was particularly impressed by arguments about “function creep” i.e. the use of the system for other purposes by (say) the police; and by the danger that someone would access and make improper use of the very extensive recorded information. Finally, the FTT said that the ICO was entitled to serve an enforcement notice, given the high public importance of the case.

Plainly, this is a significant decision, whose principles can be read across to a range of surveillance activities carried out by public bodies.

Timothy Pitt-Payne QC and Anya Proops of 11KBW appeared for Southampton City Council and the ICO respectively.

Important development in local government transparency

The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 (SI 2012/2089) came into force this week (10 September). The aim is to enhance the transparency of local government decision-making, including through the detailed prescription of what an officer must record in relation to an “executive” decision (see regulation 13(4)). Exactly how far does this extend? What counts as an executive decision? These and other thorny issues under the new regulations have been addressed by 11KBW’s Clive Sheldon QC, whose legal advice is discussed in this piece by Dr Nicholas Dobson of Pannone LLP and in this piece by Philip Hoult in the Local Government Lawyer, which also features commentary on the new regulations by Geoff Wild of Kent County Council here.

Robin Hopkins

11KBW Information Law Reports with JUSTIS, 4th edition update released

The fourth edition of the Information Law Reports is now available. Reported cases include: Kennedy v IC, All Party Parliamentary Group on Extraordinary Rendition v IC & FCO, Breeze v IC and the Chief Constable of Norfolk Constabulary and the Crown Prosecution Service, Bolton v IC & East Riding Yorkshire Council and Cranfield University v IC

The reports are edited by Timothy Pitt-Payne QC, Anya Proops, and Robin Hopkins, three of the leading practitioners in the field of information law and members of 11KBW’s Information Law Group.

The reports were written by Members of the Information law team including  Timothy Pitt-Payne QC, Anya Proops, Robin Hopkins, Jane Oldham, Clive Lewis QC, Akhlaq Choudhury, Julian Milford, Holly Stout and Rachel Kamm.

For more information on the Information law reports and how you get your free trial click here